Sex discrimination has long been a problem for the Armed Forces with its historically male dominated culture. Only 67% of jobs in the Army are open to women, whilst the RAF and Navy are more inclusive. Upon appointment last year, the new Air-Vice Marshal, Elaine West, defended the UK’s policy of women on the frontline.

But it is not just about women’s right to do certain jobs in the Armed Forces – even once they are in, they can face sex discrimination as many high profile cases demonstrate, such as the cases of Tilern DeBique or Rabia Saddique.

However, a recent decision in the Employment Appeal Tribunal (Duncan v Ministry of Defence ([2014] UKEAT 0191_14_0210) has recognised a complainant’s right to access the tribunal when they have any discrimination complaint, despite the Armed Forces having their own powers handle such complaints.

Ms Duncan was a female serving member of the Armed Forces, who made a claim to the Employment Tribunal on 26 July 2013 of sex discrimination, harassment owing to her gender and victimisation. She brought this claim under the Equality Act 2010 (EA 2010). She had made these complaints through the Armed Forces complaints procedure, but by the time her Employment Tribunal hearing came about, her complaints to the Armed Forces were still being considered in the first stage of this procedure. The Employment Tribunal threw out the case at a Preliminary Hearing on the grounds that it had no jurisdiction over the claim because of s.121 of the Equality Act 2010.

S.121(1) EA 2010 only allows the tribunal to hear an Armed Forces case if the complaint has also been made to the Armed Forces and this complaint has not been withdrawn. The complaint is considered to be withdrawn if it has not been referred to the Defence Council, either by the complainant, the officer to whom the complaint was made or a superior officer (s.121(2)).

The reasoning of the tribunal was that because the complaint had not made it to the Defence Council, it could be treated as withdrawn and therefore the Employment Tribunal had no jurisdiction over the claim.

There was an appeal by consent and the case was considered by the Employment Appeal Tribunal on the papers.

It was considered that the purpose of s.121 must be examined carefully. Of course, its purpose is to preserve the power of the Armed Forces to handle their complaints internally. However, this must be balanced against the complainant’s individual right to access a court/tribunal under article 6 of the European Convention on Human Rights. This was especially important because it is possible that had Duncan waited for the referral to and/or a subsequent decision by the Defence Council she may have been outside the time limit to bring a claim in the Employment Tribunal (six months from date of act to which the proceedings relate or such a time as the tribunal thinks just and equitable (s.123(2) EA 2010).

The Employment Appeal Tribunal held that it is clear from s.121(2) that the Employment Tribunal is only barred from hearing an Armed Forces case brought under the EA 2010 if the right to referral to the Defence Council has arisen and has not been exercised. This was not the case in Duncan. Her complaints had not got to the stage of referral to the Defence Council and as such, the Employment Tribunal could consider the case. The statute must be read to balance the aim of giving the Armed Forces the power to handle complaints internally against the complainant’s right to access a court/tribunal. A claim would therefore only be barred in the Employment Tribunal if the complainant had failed to use the Armed Forces complaint’s procedure at all or had done so and the complaint is not referred to the Defence Council.

This is a welcomed clarification to the statute governing the Armed Forces’ power to handle complaints of discrimination internally. An individual’s right to access the Employment Tribunal is reinforced, ensuring that an individual has the chance to have their claim heard and, if necessary, remedied.